Opinion
No. 12192.
Delivered February 13, 1929.
1. — Sale of Intoxicating Liquors — Change of Venue — Burden of Proof — Is on Applicant.
Where an application is made for a change of venue, the burden of establishing the grounds set out in the application is upon the accused and unless this burden is met, the court has nothing to review.
2. Same — New Trial — Newly Discovered Evidence — Practice on Appeal.
Where a motion for new trial is based upon newly discovered evidence, and evidence is heard on the motion in the trial court, unless the evidence adduced is brought forward, nothing for review is presented on appeal.
Appeal from the District Court of Gregg County. Tried below before the Hon. P. O. Beard, Judge.
Appeal from a conviction for the sale of intoxicating liquor, penalty one year in the penitentiary.
The opinion states the case.
No brief filed for appellant.
A. A. Dawson of Canton, State's Attorney, for the State.
The offense is selling intoxicating liquor; the punishment confinement in the penitentiary for one year.
Appellant based an application for a change of venue on the two statutory grounds. The issue being joined, he waived the first ground and offered proof on the question of there being a dangerous combination against him instigated by influential persons. He averred that by reason of such combination he could not expect a fair trial. We deem it unnecessary to recite the testimony heard by the trial court. Appellant wholly failed to show that such combination existed.
Appellant's motion for a new trial was based in part on newly discovered evidence. The order of the trial court overruling the motion recites that evidence was heard. The evidence is not brought forward. We must, therefore, indulge the presumption that the court's action in overruling the motion was correct, and that the trial court acted upon evidence which was sufficient to justify his action. Sykes v. State, 2 S.W.2d 863.
The judgment is affirmed.
Affirmed.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.